.jpg)
Debtor Not Balance Sheet Insolvent-- All equity locked in rental house
charset="UTF-8"
Perhaps Section 363(f)(4) would also work since the co-owners interest is the subject of a bona fide dispute. But even in that situation, the disputed interest would attach to the sale proceeds and you would still need an adversary proceeding to litigate the bona fide disputed interest. Slightly different path, but same result (i.e. an adversary proceeding).
Frank X. Ruggier
Attorney at Law
15760 Ventura Blvd., Suite 880
Encino, CA 91436
Tel: (818) 796-3529
The post was migrated from Yahoo.
charset="UTF-8"
While Section 363(h) would allow sale of the property (assuming applicable in chapter 13), the co-owners / joint tenants interest would attach to the sale proceeds and I believe that you would need an adversary proceeding to determine how much the joint tenant would be owed. I could be wrong (and maybe it depends on the judge) but if the property interest is disputed, I thought that it required an adversary proceeding. If you need both 363 motion AND adversary proceeding, not sure there is much benefit to bankruptcy as opposed to state court quiet title / settlement. Something to possibly keep in mind before filing.
Good luck.
Frank
Frank X. Ruggier
Attorney at Law
15760 Ventura Blvd., Suite 880
Encino, CA 91436
Tel: (818) 796-3529
The post was migrated from Yahoo.
charset="UTF-8"
Am I missing something? There is a co-owner joint tenant that you don
What are your plans with respect to the co-owner? Are you going to litigate with co-owner in bankruptcy court that co-owner has no equitable interest in the property or are you going to pay the co-owner his/her 50% share? If litigating, maybe better to litigate outside of bankruptcy and avoid bankruptcy all together. If paying co-owner 50%, wouldnt co-owner be willing to sell voluntarily for that 50% proceeds? Maybe approach the co-owner and pay him/her off to cooperate with voluntary sale (costs of quiet title litigation settlement).
Frank X. Ruggier
Attorney at Law
15760 Ventura Blvd., Suite 880
Encino, CA 91436
Tel: (818) 796-3529
The post was migrated from Yahoo.
I have a new potential case that is a little messy. The Debtor is not balance sheet insolvent, only cash flow insolvent. Her only asset is a house she rents to her sister. They don't speak because...well, never mind. Long story short, she wants to sell the house to pay her creditors 100% and get out of her credit card purgatory. There's $50K of credit card debt and $130,000 of realizable equity in the property.
She wouldn't even need to file bankruptcy if it were that simple. It's not. She is joint tenants with her brother in law's father because at the last moment they told her that her income was insufficient and she needed someone else on the title to qualify as to income. Other title holder put no money down. He may have made a few of the mortgage payments, but that is all. She doesn't even know him and doubts he'll agree to sell.
So put her in Chapter 7, the Chapter 7 Trustee will have no trouble selling the house. However, Chapter 7 Trustee gets statutory fees on even the mortgage payment, and will undoubtedly hire a big law firm to do the sale and charge megabucks to do the legal work. Debtor's equity over the $50,000 owed to creditors of $80,000 will be severely depleted at the end of the process. A very expensive way to pay creditors.
Chapter 13, however, allows me to control the expenses on the legal fees and no Chapter 7 statutory fees.
I've never seen it done though, although I've done many 11 U.S.C. 363 motions in both chapters. I'm assuming a judge's signature with valid notice to all parties would be the same as if a Chapter 7 Trustee requested the sale.
(j) After a sale of property to which subsection (g) or (h) of this section applies, the trustee shall distribute to the debtor's spouse or the co-owners of such property, as the case may be, and to the estate, the proceeds of such sale, less the costs and expenses, not including any compensation of the trustee, of such sale, according to the interests of such spouse or co-owners, and of the estate.
Does anyone see any problems with doing this liquidation involving the other title holder in a Chapter 7 case? Is there any special Chapter 7 Trustee power I'm forgetting about? I've always thought a debtor could exercise the Chapter 13 Trustee powers, and subpart J would be exercised on the 13 Trustee's behalf.
And wouldn't the Trustee's 11% only go to paying the $50,000 of credit card debt, and not the mortgage paid through escrow?
Steve
Law Offices of Steven B. Lever
>
> Steven B. Lever
>( Tel. (562) 436-5456 ext. 1
>( Fax (562) 485-6886
>* sblever@leverlaw.com
> www.leverlaw.com
The post was migrated from Yahoo.